What If Your Background Check Reveals a Criminal Record?
Posted by Amanda DiSilvestro on April 10, 2012 in Employee Background Checks [ 1 Comment ]
When you’re ready to hire your first employee, there are a lot of feelings that may come over you. Excitement to take that next step into growing your business. Anxiety about the uncertainties of bringing someone new into the fold. Relief because you’ll be able to spread your work across two people. Unfortunately, one of those feelings may also be frustration and nervousness – when, after performing a background check, you discover that your first potential hire has a criminal record.
What to Do
First thing’s first. Here’s a little background on background checks: When it comes to conducting employment screenings, you must be familiar with the Fair Credit Reporting Act, as it is an the most important document that governs all of the rights and responsibilities you have as an employer conducting searches on your candidates. This is particularly important if you plan to undertake the background check yourself. This act also spells out everything you must do if you come across any discrepancies when looking into your prospective employee’s references, employment history or, perhaps most importantly, criminal record.
To be consistent, and in compliance with FCRA, if you do uncover something that doesn’t sit well with you and gives you reason enough not to employ them, you are required to give notice to the applicant that their criminal report was reviewed, as well as a copy of the criminal report that cites the infraction.
From there, you must provide them with a copy of the FTC’s Summary of Rights Under the Fair Credit Reporting Act. This document informs the candidate of the following rights:
- He or she must be told if the criminal record has been used to decide not to offer employment.
- He or she has the right to know what’s in the file.
- He or she can dispute incomplete or inaccurate information. (Our note – you should absolutely take the steps to dispute this!)
Additionally, this document suggests that many states may enforce the FCRA, and the candidate may have more rights under state law than federal. It’s recommended that any employee who seeks additional information or to correct the information that was reported should contact their state. From there, you must give this candidate any other government-provided information on their rights now that you’ve made the decision not to hire them.
If the information reported is found to be incorrect, it is the responsibility of the employee to dispute this information and assure that it is corrected. It is under your personal discretion as the employer as whether or not you want to hold off on filling the position until you receive the updated criminal history report.
Your Legal Rights
If the criminal history reported is correct, is it legal to not employ this person? According to the Small Business Administration, “to what extent a private employer may consider an applicant’s criminal history in making hiring decisions varies from state to state.” It’s suggested that you consult with a lawyer in your state, or do further legal research on the laws of your state, before making a final hiring decision. Further, it bears mentioning that both your industry and the position itself should be factors to consider when deciding whether or not to offer employment to the individual.
Though you should certainly consult a lawyer if you find yourself in this position, you might want to refrain from making blanket “across-the-board” policies against hiring anyone with a criminal history. These bans have increasingly become the subject of litigation, and you could set yourself up for legal trouble and accusations of discrimination if you adhere to such a policy. Evaluate the position carefully by considering the nature of the crime, the length of time since it occurred, and how it relates to the position.